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Decision No. 14,971

Appeal of L.G., on behalf of S.G., from action of the Board of Education of the Baldwin Union Free School District regarding student discipline.



(October 9, 2003)


Law Firm of Anthony D. Denaro, P.C., attorney for petitioner, Lawrence S. Lefkowitz, Esq., of counsel

 Ingerman, Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

 MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Baldwin Union Free School District ("respondent") to suspend her son from school.  The appeal must be dismissed.

During the 2002-2003 school year, petitioner"s son, S.G., was enrolled in the fifth grade at Milburn Elementary School, within respondent"s district.  On June 3, 2002, the school principal learned that S.G. allegedly had possessed a pocketknife on the playground that day during luncheon recess.  As a result, the principal met with S.G. and asked him to provide a written account of what had occurred on the playground.  In response, S.G. wrote a statement in which he admitted possessing the pocketknife. 

By letter dated June 4, 2002, respondent"s superintendent notified petitioner and her husband that S.G. was being charged with two counts of misconduct based on allegations that on June 3, 2002 he possessed a pocketknife on the school playground and threatened a student with it.  The letter further informed petitioner and her husband that a superintendent"s hearing would be held on June 10, 2002. 

Petitioner"s son was the only witness at the hearing.  He admitted possessing the knife and explained that he had found it on school grounds approximately two weeks earlier, had possessed it on other occasions and had left it "in the trees" on school grounds.  S.G. also admitted picking up the knife from the ground on June 3, 2002 and holding it while arguing with another student, but denied threatening the student with it. 

At the conclusion of the hearing, the superintendent found S.G. guilty of possessing the pocketknife, but not guilty of threatening the other student.  By letter dated June 11, 2002, the superintendent informed petitioner and her husband that, based on her finding that S.G. had possessed the pocketknife, S.G. would be suspended for the remainder of the school year, but would be permitted to attend the "moving-up" ceremony on June 25. 

Petitioner initially commenced an appeal in July 2002 challenging her son"s suspension, but withdrew the appeal after respondent submitted an answer alleging that petitioner had failed to exhaust her administrative remedies.  Petitioner then appealed her son"s suspension to respondent.  By letter dated January 23, 2003, respondent affirmed the superintendent"s determination.  This appeal ensued.

Petitioner contends that the principal violated S.G."s due process rights by improperly coercing a statement from him without his parents present.  Petitioner requests that I expunge S.G."s record.  Respondent contends that S.G."s statement was made voluntarily and that S.G."s suspension was proper.

A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Board of Educ. of Monticello CSD v. Commissioner of Education, 91 NY2d 133; Bd. Of Educ., City of New York v. Mills, 293 AD2d 37; Appeal of D.C., 41 Ed Dept Rep 277, Decision No. 14,684).  In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10) and the burden of demonstrating a clear legal right to the relief sought (Appeal of D"Oronzio, et al., 41 Ed Dept Rep 457, Decision No. 14,745; Appeal of Gaul, et al., 40 id. 105, Decision No. 14,432; Appeal of Kozak, 39 id. 278, Decision No. 14,237).

I find no merit to petitioner"s claim that her son"s written statement was obtained improperly.  According to respondent, the principal simply asked S.G. to explain in writing what had occurred on the playground and left him alone while he wrote the statement.  Petitioner submits no evidence suggesting that her son was coerced.  Further, there is no requirement that a parent be present when a student is questioned by school personnel (Appeal of Lago, 38 Ed Dept Rep 723, Decision No. 14,126; Appeal of Pronti, 31 id. 259, Decision No. 12,636). Moreover, S.G."s admission at the superintendent"s hearing that he possessed the pocketknife constitutes substantial evidence to sustain the superintendent"s determination.